HomeMy WebLinkAbout09-08-1998 Public ReportsPCRB PUBLIC REPORT TO THE CITY COUNCIL
This is the Report of the Police Citizens Review Board (the ~Board")
review of the investigation of Complaint PCRB 98-13 (the 'Complaint").
BOARD'S RESPONSIBILITY
Under the City Code of the City of Iowa City, Section 8-$-7 B, the
Board's job is to review the Police Chief's Report ("Report~) of his
investigation of a complaint. The City Code requires the Board to apply a
'reasonable basis" standard of review to the Report and to 'give deference"
to the Report "because of the Police Chief's...professional expertise.~
Section 8-8-7 B{2). While the City Code directs the Board to make ~findings
of fact," it also requires that the Board recommend that the Police Chief
reverse or modify his findings only if those findings are "unsupported by
substantial evidence," are 'unreasonable, arbitrary or capricious," or are
"contrary to a Police Department policy or practice or any Federal, State or
local law." Sections 8-8-7B(2)a, b, and c.
BOARD'S PROCEDURE
On July 15, 1998, this Complaint was received at the office of the
Citv Clerk. As required by Section 8-8-5 of the City Code, the Complaint
was referred to the Police Chief for investigation. The Chief completed his
Report and submitted it to the Board on August 14, 1998. The Board voted
to review the Complaint in accordance with Section 8-8-7B(1)(a), which
means that it chose to review the matter on the record before it without
additional investigation by the Board. The Board met on August 18, August
25, and September 1, 1998 to consider the Report.
FINDINGS OF FACT
This Complaint arises out of a traffic stop of the complainant. The
complainant was stopped because his car did not have functioning taillights.
Once he was stopped, the officer conducting the stop believed, based on
the complainant's behavior, that he might be under the influence of alcohol.
The officer asked the complainant to take a preliminary breath test. The
complainant objected to taking the test, asked the officer to smell his
breath, and complained that he should not be required to take a breath test
if his breath did not smell like alcohol. He contends that he was threatened
with arrest and loss of his license if he did not comply with the request to
take the breath test. The complainant did take the breath test and his blood
alcohol level was zero. The officer issued the complainant a citation for the
tail light violation and permitted him to leave.
The complainant asserts that the stop of his vehicle was
unreasonable, that he was threatened with arrest and loss of his driver's
license if he refused to take the breath test, that one of the officers on the
scene misidentified himself, that he was harassed when the officer asked
him if he used an inhaler or had asthma, and that it was improper to ask him
to take a preliminary breath test if his breath did not smell of alcohol.
The Chief's investigation included interviews with the complainant
and the two officers who had been present at the time of the stop, and
consultation with other departmental supervisors.
CONCLUSIONS
Allegation 1. The complainant alleges that the stop of his vehicle was
unreasonable. The stop was, however, based on the fact that the car was
driving without taillights. The stop of the vehicle was proper. Accordingly,
the conclusion in the Report that the stop of the complainant's car was
based on probable cause to believe he was violating the law is supported by
substantial evidence and is not unreasonable, arbitrary or capricious. This
allegation is NOT SUSTAINED.
Allegation 2. The complainant alleges that he was threatened with
arrest and loss of his driver's license if he refused the preliminary breath
test~ and that this violated his civil rights. The Police Chief found that the
complainant was told that, if he refused to take the preliminary breath test
at the scene, he would be taken into custody and offered an Intoxilyzer test.
If he refused that test, he could lose his driver's license.
The breath test the officer sought to administer at the scene with a
hand-held device is a preliminary test only, one not admissible in court. The
test, however, helps an officer determine whether there is probable cause to
believe that a person is or is not intoxicated. While refusal to take the
preliminary breath test does not result in a driver's license revocation, it can
be considered by the officer in addressing whether there is adequate
probable cause to believe the person refusing to take the test is under the
influence of alcohol. If the officer concludes there is probable cause to
believe the suspect is intoxicated, the officer may arrest the suspect. A
suspect who has been arrested for OWl and who is asked to take the formal
Intoxilyzer test administered at the county jail, but who refuses to take that
test, does subject himself to driver's license revocation. Accordingly, the
Police Chief's conclusion that the officer properly advised the complainant
of the consequences of his refusal to take the preliminary breath test is
supported by substantial evidence and is not unreasonable, arbitrary or
capricious. Allegation 2 of the complaint is NOT SUSTAINED.
Allegation 3. The complainant al!eges that the officer on the scene
mi.sidentified himself by wearing the wrong nametag. The Police Chief
concluded that this did not happen. That conclusion is supported by
substantial evidence and is not unreasonable, arbitrary or capricious.
Accordingly, allegation 3 is NOT SUSTAINED.
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Alle.qation 4. The complainant objected that asking him whether he
used an inhaler or had asthma was an attempt to harass or intimidate him.
The Police Chief concluded that such questioning was appropriate because
such circumstances might create a medical reason for failure to comply with
the preliminary breath test. This conclusion is supported by substantial
evidence and is not unreasonable, arbitrary or capricious. Allegation 4 is
NOT SUSTAINED.
Allegation 5. The complainant argues that it was improper to
administer a preliminary breath test to him because he did not smell of
alcohol. While the smell of alcohol is one basis for concluding that someone
is intoxicated, it is not the only one. The Police Chief's conclusion that the
officers' suspicion that the complainant was impaired was properly based on
their observations of his behavior is supported by substantial evidence and
is not unreasonable, arbitrary or capricious. Allegation 5 is NOT
SUSTAINED.
DATED: September 1, 1998